Humanist NZ’s views on the Ministry of Justice’s discussion document “Proposals against incitement of hatred and discrimination”

This response is from the Humanist Society of NZ (Humanist NZ), a secular organisation with an interest in Human Rights with a particular emphasis on the rights of non-religious people.

The Ministry of Justice is considering changes to legislation in response to the report from the Royal Commission of Inquiry into the terrorist attack at Christchurch masjidain on 15 March 2019. It is seeking public comment on its proposals. It is doing so via a Survey Document which seeks answers from interested parties to six questions relating to the proposed legislative changes. In general terms, the proposals seek (1) to extend protection to a number of groups of people, not individuals, from harsh derogatory comment and discrimination, (2) consolidate in the Crimes Act the list of protected groups and (3) change civil and criminal law so that both use the same vocabulary.

The Council of the Humanist Society of NZ (Humanist NZ) considered the Survey at a recent meeting and generated some comments as a basis for a Humanist submission to the Ministry of Justice. Each of the six sections below:-

  1. reproduces one of Ministry of Justice proposals from their survey document,
  2. provides some explanation of it if thought necessary, often based upon some text in the survey document,
  3. reproduces the questions that respondents are asked to reply to and
  4. includes some comment made at the recent Council meeting and some text for insertion as the NZ Humanists’ response or to form a first draft of a response.

Proposal One

Change the language in the incitement provisions so that they protect more groups that are targeted by hateful speech

Current law (the Human Rights Act, section 61) protects groups because of their “colour, race, or ethnic or national origins”. The government believes that other groups are targeted by hateful speech today. These include “groups based on their religion, gender, sexuality, and disability” (p.17). On the same page, the survey document provides another similar list of groups experiencing hateful speech, namely groups identifiable by their “sex, gender (including gender identity), religious belief, disability, or sexual orientation”

The Survey asks for feedback at follows:

1. Do you agree that broadening the incitement provisions in this way will better protect these groups? Why or why not?

2. In your opinion, which groups should be protected by this change?

3. Do you think that there are any groups that experience hateful speech that would not be protected by this change?

Humanist NZ Response

Humanist NZ agrees with extending the number and types of groups that should be protected from hate speech. 

However, we think the words “religion or ethical belief” should be used rather than the word “religion” alone in any new legislation. The use of “religion or ethical belief”, or the alternative “religion or belief”, is required to conform with Article 18 of the Universal Declaration of Human Rights (1948), Article 18 of the International Covenant of Civil and Political Rights (which binds New Zealand from 1976), section 13 of the New Zealand Bill of Rights Act 1990, and section 21 of the New Zealand Human Rights Act 1993. As we see it, when religion is included in NZ legislation, the failure to also include “ethical belief”, which under section 21(1)(d) of the Human Rights Act 1993 means the lack of a religious belief, whether in respect of a particular religion or religions or all religions, is a prohibited grounds of discrimination and a  breach of the Human Rights Act 1993.

While it is sometimes argued that “religion” will automatically include “belief”, the failure to include “belief” in New Zealand legislation, especially when it is included in all of the documents listed in the previous paragraph, creates the impression that legislators may have deliberately omitted “belief” when the omission was not necessarily deliberate. Legislation, since the passing of the New Zealand Bill of Rights in 1990 and the Human Rights Act 1993, should therefore always use “religion or belief” to remove this ambiguity.

The new legislation should also accommodate the following considerations:

1. The list of protected groups should explicitly include those changing their religious belief, or abandoning previously held religious beliefs (apostates) – as this is a group at risk of being targeted by hate speech. Apostates are known to be specifically targeted – with the encouragement of political and religious leaders – in countries such as Pakistan, with very serious consequences including death. Blasphemy and apostasy are not considered crimes under international law, and are not crimes in New Zealand.

Nevertheless, fourteen countries maintain death penalties for blasphemy or apostasy in breach of International law. The fourteen countries are: Afghanistan, Brunei, Iran, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, United Arab Emirates, and Yemen. People in these countries, and in other countries that criminalise blasphemy and apostasy with fines, imprisonment or both, are often targeted with hate speech laws for supposedly committing these very dubious and victimless offences. More often than not, the charges are made with malicious intent and are either trivial or false. There are people from these countries, escaping dubious or malicious charges of blasphemy or apostasy, who have been granted asylum in New Zealand.

2. No religious or political belief system should be explicitly or implicitly protected; only people should be protected by any changes to our hate speech law.

3. Nobody in New Zealand should be exempt from these new laws. Specifically, the inclusion of any group as a protected group should not exempt that group or individuals within that group from prosecution under the Crimes Act 1961, or action under the Human Rights Act 1993, should they indulge in hate speech or discrimination against other protected groups.

4. Moves to protect religious groups from hate speech should not be a means of introducing what amounts to de facto blasphemy laws. Hate speech law should protect people and groups of people from the incitement to hatred and violence and should not be used to protect institutions and ideas from discussion and criticism. The United Nations Human Rights Council and other international bodies have been working to eliminate all blasphemy laws and replace them where necessary with sound Hate Speech law. Having recently removed our own blasphemy law, we would not like to see New Zealand regress to introducing a new similar law that acts as a blasphemy law but under a different name.

Proposal Two

Replace the existing criminal provision with a new criminal offence in the Crimes Act that is clearer and more effective

It is proposed that the new legislation “would prohibit speech that maintains or normalises hatred, in addition, to speech that incites or stirs up hatred.” The term ‘hatred’ is not defined. However, the Chief Executive of the Ministry of Justice recently stated that “hatred” implies extreme dislike or disgust, “incite/stir up” covers speech that causes other people to also feel hatred towards a group and “maintain or normalise” covers speech towards a protected group which builds on or reinforces already held feelings of hatred in others.

The survey document states that new legislation would protect freedom of expression by ensuring that only extreme hate speech is criminalised, and that there must be an intention to cause others to develop and strengthen hatred towards a group.

The survey asks for feedback as follows:

1. Do you agree that changing the wording of the criminal provision in this way will make it clearer and simpler to understand? Why or why not?

2. Do you think that this proposal would capture the types of behaviours that should be unlawful under the new offence?

Humanist NZ Response

Humanist NZ agrees that new wording could make the law more understandable, but only if precise definitions and examples of the newly introduced terms referring to “types of behaviour” were provided to minimise ambiguity.

We feel the word “insult” should not be used as it is both too broad in meaning and too subjective in its likely interpretation. For example, calling a group “gullible” could be regarded as insulting. People vary widely when interpreting words and some may well feel insulted when no insult is intended, or when a reasonable person would not feel insulted. We wonder if another word could be used here instead of insult.

While section 131 of the Human Rights Act 1993 is the current criminal section, section 132 limits the use of section 131 by requiring the consent of the Attorney-General before a prosecution can proceed. In order to maintain a consistency between the Human Rights Act as it stands today, and the Crimes Act as is proposed for the future, we strongly recommend that if section 131 is transferred to the Crimes Act 1961, section 132, requiring consent of the Attorney-General, should also be transferred to the Crimes Act.

We are concerned that should section 131 be transferred to the Crimes Act and extended to include religion or belief or other grounds of discrimination it may act as an unintended dampener of, or unnecessarily prohibit, freedom of expression in these areas. Grounds of discrimination that cover ideas such as religion or belief, or political ideas rather than physical characteristics that cannot be avoided, should prevent discrimination or the incitement of hatred against groups of people on these grounds, but should not prohibit or discourage free and open debate on the validity or merits of ideas. It is very important that the ideas presented by religions or beliefs and political ideas remain open for discussion.

We also suggest the addition of the following subsection to the existing section 132 of the Human Rights Act or any section of the Crimes Act that replaces it:

It is not an offence against this section to express orally or otherwise and in good faith using arguments, art, satire, humour, cartoons, or any other means, any opinion whatsoever on any subject relating to religion or belief, or political belief.

This proposal is based on the now repealed Section 123 (3) of the Crimes Act 1961.

Proposal Three

Increase the punishment for the criminal offence to up to three years’ imprisonment or a fine of up to $50,000 to better reflect its seriousness.

The survey asks for feedback as follows:

1. Do you think that this penalty appropriately reflects the seriousness of the crime? Why or why not?

2. If you disagree, what crimes should be used as an appropriate comparison?

Humanist NZ Response

 Humanist NZ regard this proposal as acceptable, and in conformity with other legislation.

Humanist NZ would be interested in hearing what options there would be for helping to rehabilitate those who are found guilty of hate speech.

Proposal Four

Change the language of the civil incitement provision to better match the changes being made to the criminal provision.

This proposal would change the wording of the civil incitement provision to include “inciting/stirring up, maintaining or normalising hatred” alongside the existing wording. The objective of this proposal is only to ensure that civil and criminal legislation use the same terminology.

The survey asks for feedback as follows:

1. Do you support changing this language in section 61? Why or why not?

2. Do you think that any other parts of the current wording of the civil provision should be changed?

Humanist NZ Response

 Humanist NZ agrees that the civil and criminal legislation should use the same terms. However, we regard the term “stirring up” as too imprecise to be worthy of inclusion in legislation, and would prefer use of the word “inciting”.

With all terms that will be used in the new legislation, it is essential that definitions be included to aid interpretation of the law. We would also like to see examples given of the types of speech that would be considered in breach of the new legislation.

Proposal Five

Change the civil provision so that it makes “incitement to discrimination” against the law.

New Zealand is a signatory to the International Covenant on Civil and Political Rights (ICCPR). This Covenant states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Incitement to discrimination is not currently included in any legislation.

The survey document proposes that it would become unlawful to incite others to discriminate against members of the protected groups previously mentioned from discrimination.

The survey asks for feedback as follows:

1. Do you support including the prohibition of incitement to discriminate in section 61? Why or why not?

Humanist NZ Response

Humanist NZ agrees with this proposal provided the wording used ensures that, for “religion or belief” or “political belief”, only intentional and severe cases are regarded as civil offences. As elsewhere, the terminology used should not be such as to silence or deter critics from legitimate discussion or criticism, including calls to action and mockery.

We are concerned about the risk of civil lawsuits being used to shut down legitimate criticism, and would like to see consideration given to how to best guard against this issue.

Proposal Six

Add to the grounds of discrimination in the Human Rights Act to clarify that trans, gender diverse, and intersex people are protected from discrimination

The Survey Document states that this proposal would change the prohibited grounds of discrimination in the Human Rights Act to clarify the protections for trans, gender diverse and intersex people. This would be done by changing the wording of the ground of “sex” to include “sex characteristics or intersex status” and adding a new ground of “gender including gender expression and gender identity”. This would clarify that it is illegal to discriminate on the grounds of gender, gender expression, gender identity, sex characteristics or intersex status.

The survey asks for feedback as follows:

1. Do you consider that this terminology is appropriate?

2. Do you think that this proposal sufficiently covers the groups that should be protected from discrimination under the Human Rights Act?

3. Do you consider that this proposal appropriately protects culturally specific gender identities, including takatāpui (a Maori term with a wide meaning, referring to intimate companion of the same sex)?

Humanist NZ Response

Humanist NZ agrees with this proposal in principle, although we wish to draw attention to the dangers of unintended consequences arising from the use of an explicit list of descriptives in an area where language usage is very fluid. Based upon the recent past, new terminology in this area can be expected to arise. Use of an overly precise descriptive list becomes prescriptive, and may therefore be interpreted as excluding groups that are deserving of protection but whose names today or in the future neither appear in the list nor fit into those that do. A way of wording this part of the law is required which would allow more flexibility of interpretation.